PHILIPOSE THOMAS Vs. VELAYUDHAN PILLAI GOPALA PILLAI
LAWS(KER)-1968-1-6
HIGH COURT OF KERALA
Decided on January 25,1968

PHILIPOSE THOMAS Appellant
VERSUS
VELAYUDHAN PILLAI GOPALA PILLAI Respondents

JUDGEMENT

- (1.) The appellant herein is the 3rd defendant in a suit instituted by a puisne mortgagee to redeem a prior mortgage. The suit property belongs to a Hindu minor, as been gifted to him by his paternal grandmother on February 2, 1955. Prior to the gift, the property had been mortgaged to the 1st defendant as per Ext. P2 dated August 13, 1953. On December 10, 1957, the minor's father, (acting as guardian) executed the puisne mortgage, Ext. P1, to the plaintiff, who by virtue thereof instituted this suit on. January 4, 1958. On the same day, i.e., January 4, the minor's mother (professing to be the guardian) executed a conveyance, Ext. D2, to the 3rd defendant, son of the 1st defendant; and on January 25, 1958, the 1st defendant executed a release, Ext. D3, to him In reply to the plaintiff's claim to redeem, defendants 1 and 3 contended that the puisne mortgage in favour of the plaintiff was incompetent and void. The Courts below repelled that contention, held the minor's guardian to be his father and therefore the puisne mortgage to the plaintiff to be valid and the sale to the 3rd defendant to be void and decreed redemption by the plaintiff. Hence this second appeal.
(2.) Counsel for appellant read S.4(b) of the Hindu Minority and Guardianship Act, XXXII of 1956, which defines 'guardian' to mean "a person having the care of the person of a minor or of his property or of both his person and property" and contended that as the minor was on the date of Exts. P1 and D2 in the care of the mother she was his guardian and therefore her alienation was the valid one. The contention is seemingly attractive; but the further provisions in the Act show clearly that, after the commencement of the Act, a de facto guardian has no right to deal with minor's property (see S.11) and that the power of disposal of the minor's property is only with the natural guardian (see S.8). S.6 of the Act defines the natural guardian of a Hindu minor boy to be firstly the father and after him the mother. So, the present minor's guardian is his father, and not the mother. It then follows that the Courts below were right in finding that the conveyance by the minor's mother to the 3rd defendant is void and that the puisne mortgage by the minor's father is valid.
(3.) Under S.8(3) a natural guardian's disposal of the minor's immovable property could be avoided by the minor or any person claiming under him. The 3rd defendant claiming under void sale cannot be reckoned as a person "claiming" under the minor. Voidness is vacuum and cannot support any claim or right. It cannot be contended that the voidness of the conveyance to the 3rd defendant can be pleaded only by the minor and not by the plaintiff. Apart from the facts that voidness, as distinct from voidability, can be pointed out by anybody and that S.8 of the Act applies to acts of a natural guardian and not of a de facto guardian, the plaintiff, who claims under a puisne mortgage which is not void It may be voidable; but voidable transactions are not void till they are avoided is one claiming under the minor within the meaning of S.8 of the Act and therefore lawfully entitled to impugn the conveyance to the 3rd defendant. Counsel's contention that the 3rd defendant as the assignee of a mortgage of the minor's property is one who claims under the minor and as such entitled to challenge the puisne mortgage to the plaintiff is also not correct. In certain contexts, a mortgagee may be said to hold under an assignee of the equity of redemption, but not in all circumstances. A person claiming under the minor within the meaning of S.8 of the Hindu Minority and Guardianship Act must be one claiming under a valid alienation by the minor (which can only be through a guardian) or in succession to him. The mortgage, Ext. P1, was not executed by a guardian of the minor: on the other hand, it was a transaction prior to the gift in favour of the minor under which alone he became entitled to the property. The minor's title is subject to that mortgage. In other words, the mortgage vested in the 3rd defendant is a claim superior or paramount to the minor's title. He cannot then be said to claim "under'' the minor. He may probably be said to have a claim "over" the minor's property. The 3rd defendant has therefore no locus standi to challenge the puisne mortgage executed by the minor's father to the plaintiff.;


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